Bench Memos

Methinks the Simon Lazarus Doth Protest Too Much

Last week, Simon Lazarus published an editorial that probably set a record in a new category: Most Words Discussing a Brief Opposing a Petition for Rehearing En Banc. The editorial discusses Halbig v. Burwell and its sister case, King v. Burwell. (Halbig and King, you probably remember, are the two leading challenges to Obamacare tax subsidies that the IRS is giving to all state and federal exchanges, whether or not the exchange was, in the words of the statute, “established by the State.”)

There’s a lot to laugh about in the piece, especially the use of overheated adjectives. The headline calls the plaintiffs “brazen” while the URL calls them “shameless.” In the first sentence of the piece, Lazarus characterizes the plaintiffs’ brief’s title as “forbidding.” The brief title? Really? Also amusing: his use of the word “blinkered,” which (perhaps coincidentally) appears in the government’s petition for rehearing, where it was an oddly disrespectful description of the panel decision. Lazarus even throws in the old canard that “textualists” have an “intense preoccupation with dictionary definitions.” (Never mind that in Halbig and King, the key definitions are all set out in the statute itself.)

But Lazarus isn’t primarily interested in his old talking points about mean old textualists and their deviant affection for dictionaries. Rather, his main thrust is to talk liberals down off the ledge of purposivism:

“Purposivist” disciples may be tempted to seize upon the ACA premium assistance challenges to skewer their philosophical adversaries. Indeed, the day after Judge Griffith’s decision, University of California law professor Richard Hasen put the blame on “unfeeling” Scalian textualism, spotlighting the purposivist “counterargument that courts have an obligation to make laws work … especially these days, when Congress is not working.” But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies.

I think Lazarus’s piece has two possible interpretations, one good, one bad. On the one hand, he is telling liberals that they should stick to the canons of statutory interpretation. It’s always a good thing if the debate involves the text of the statute that Congress actually passed, rather than the statute that Ezra Klein said they were passing.

But aside from citing Scalia’s formulation of the whole act canon and other standard interpretive principles, Lazarus doesn’t really explain how looking at the entire ACA “as a whole” would inevitably lead to his preferred result in these cases. After all, the whole act canon doesn’t mean that courts get to disregard the plain meaning of a provision that has a plausible, non-absurd purpose. Moreover, Judge Edwards relied extensively on the minutiae of the ACA’s policy goals in his dissenting opinion, so it’s not as if the “purposive” approach to statutory interpretation is just some long-dead specter that conservative commentators are conjuring from the grave.

This leads to the second interpretation of his editorial, and one that will be received loud and clear by wild-eyed purposivists: Adopt the terminology of interpretation in these cases because you still might get what you want.

Here’s why. If the government wins by appealing to the whole act canon and its demand for “holistic” statutory interpretation, those principles must be redefined to play a much stronger role in the interpretive process, thus allowing courts to override a clear, textually unambiguous provision with other provisions (which is what the Fourth Circuit did in King). Implicitly redefining the whole act canon in this way would give purposivists everything they want and more. Think of it: If the government wins, purposivists would forevermore be able to cite Halbig and King for the proposition that general considerations like the whole act canon and context trump clear and unambiguous statutory text.

I’ve never met Simon Lazarus, and I take him at his word that he thinks the “accurate” view of the government’s case relies on standard interpretive methodology. I also look forward to seeing him file an amicus brief before the Supreme Court that makes a tight textual case. But it will be even more interesting to see how, or whether, he can formulate a version of the whole act canon that vindicates the government’s position without lapsing into the same purposivism that, quite rightly, makes him uncomfortable.

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...


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